The issue of allocation of Narmada waters at Sardar Sarovar Dam site was determined on the basis of 75% dependability at 28 Million Acre Feet. However, the tribunal did not consider the demand of the State of Gujarat for Banni and Rann of Kachchh on the ground that these areas are barren and sparsely populated and the soil is highly saline having, very low permeability and a vertical permeability of nearly nil, a high ground water table and an impervious layer near the ground water surface, high evaporation and low rainfall. Thus, the tribunal rejected the claim of the State for irrigating 11 lakhs acres in Ranns and Banni areas and granted a limited allocation of 9.00 MAF of water in favour of the State of Gujarat. The tribunal has, however, given the concerned States choice to utilise the quantity of water falling to their share in their own way.

The petitioners in this petition, have challenged the decisions of meagre allocation of water to the Kachchh areas on various grounds and are also seeking directions for reconsideration of the decisions taken by the State in relation to allocation of water to Kachchh.

The petitioner, Kachchh Jal Sankat Nivaran Samiti, through its Convener and other Citizens of Kachchh, by way of this Public Interest Litigation voiced grievance as regards the meagre allocation of water from Sardar Sarovar Project by the Government to the District of Kachchh which constitute 1/4th of the total area of the State which is a 100% drought prone district. The locus standi of the petitioners, as indicated in para 3.1 of the petition makes the petition of a representative character on behalf of the people of Kachchh voicing their grievance as well as the aspirations of the people.

Issues raised

The issue before the court was whether the divisional bench of the Gujarat High Court was right in dismissing the application for larger allocation of water from SardarSarovar Dam to the district of Kachchh on the ground that the issue fell strictly within the domain of the executive and the judiciary had no right to interfere.

Contentions Raised

The High Court has analysed in detail the pleas raised by the parties and declined to interfere with the same, inter alia, on the grounds that the decision involved balance of competing claims of the natural resources and there is no judicially manageable standard for adjudication for allocation of water in favour of any region within the State.The High Court further observed that the issue raised requires determination of the choice of priorities and it is not subject to judicial review.

Appellants took a stand that the they do not seek determination of appropriate quantity of water for the District of Kutch but the plea is that the policy of distribution is based on irrelevant consideration and, therefore, subject to judicial review. According to them, it lacked transparency and exhibited extreme prejudice and discrimination against Kutch District. According to them, while making the policy, the relevant factors were ignored and irrelevant and extraneous factors had been taken into account. They point out that the State of Gujarat, while claiming large share of water from river Narmada before the Tribunal relied heavily upon the need of Kutch District to get more water but after the award, did not stick to its stand after the allocation was made by the tribunal.

Mr. ShyamDiwan, Senior Counsel represented the State of Gujarat. He stated that the scope of judicial review in this regard is narrow because the issue regarding allocation of water to the districts of Gujarat is a matter of policy. According to him, the policy has been framed after consulting technical experts in the best interest of the people and, therefore, does not call for any interference by this Court in exercise of its power of judicial review.

The State of Gujarat emphasized that they needed more water for the District of Kutch before the Tribunal. It projected all those pleas which had been projected before the court by the Appellants but the same did not find favour with the Tribunal and the Tribunal allocated 9.00 MAF water instead of 22.02 MAF water claimed before the Tribunal. Therefore, they were left with little amount of water. In the face of it, less amount of water than what has been claimed by the Appellants was allocated for the District of Kutch. The allocation of water is a matter of policy and how much water is to be released from the canal and for that matter a particular area or how much water is to be left with other regions, in our opinion, are matters which require delicate balancing and consideration of complex social and economic consideration. In our view, there being no judicially manageable standards, it shall be appropriate to leave it to be decided by the experts of the irrigation management system and water resources management.

Judgement

The court was in total agreement with the conclusion and reasoning given by the High Court and it reiterated that there being no judicially manageable standards for allocation of water, any interference by this Court would mean interference with the day-to-day functioning of the State Government. In view of separation of powers, this Court could not charter the said path.

Case Comment

In conclusion, it would be appropriate to cite a passage from the judgement of the case Tata Cellular v. Union of India:[1]

“It cannot be denied that the principles of judicial review would apply to the exercise of contractual powers by Government bodies in order to prevent arbitrariness or favouritism. However, it must be clearly stated that there are inherent limitations in exercise of that power of judicial review. Government is the guardian of the finances of the State. It is expected to protect the financial interest of the State. The right to refuse the lowest or any other tender is always available to the Government. But, the principles laid down in Article 14 of the Constitution have to be kept in view while accepting or refusing a tender. There can be no question of infringement of Article 14 if the Government tries to get the best person or the best quotation. The right to choose cannot be considered to be an arbitrary power. Of course, if the said power is exercised for any collateral purpose the exercise of that power will be struck down.”

I am Risha Kulshrestha. I am pursuing my BA LLB. degree from Christ (Deemed to be University), Bengaluru. I am in second year. I really like to research and attend seminars and workshops because they add on to my learning process. I am interested in human rights at present because I haven't studied many law subjects as of now. I like reading books, more specifically fiction. After the completion of my degree I want to opt for teaching as my career. This is because I feel that teaching is one of the few professions which do justice to the society by contributing to its development. Essentially, I believe that if you have used society's resource and have achieved what you wanted, then you should try to give it back to the society which will ensure your holistic development as an individual.